By: Montford, et al. S.B. No. 2 A BILL TO BE ENTITLED AN ACT 1-1 relating to the application of the doctrine of forum non conveniens 1-2 to certain actions. 1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-4 SECTION 1. Chapter 71, Civil Practice and Remedies Code, is 1-5 amended by adding Subchapter D to read as follows: 1-6 SUBCHAPTER D. FORUM NON CONVENIENS 1-7 Sec. 71.051. FORUM NON CONVENIENS. (a) With respect to a 1-8 claimant who is not a legal resident of the United States, if a 1-9 court of this state, on written motion of a party, finds that in 1-10 the interest of justice an action to which this section applies 1-11 would be more properly heard in a forum outside this state, the 1-12 court may decline to exercise jurisdiction under the doctrine of 1-13 forum non conveniens and may stay or dismiss the action in whole or 1-14 in part on any conditions that may be just. 1-15 (b) With respect to a claimant who is a legal resident of 1-16 the United States, on written motion of a party, an action to which 1-17 this section applies may be stayed or dismissed in whole or in part 1-18 under the doctrine of forum non conveniens if the party seeking to 1-19 stay or dismiss the action proves by a preponderance of the 1-20 evidence that: 1-21 (1) a forum outside this state is a more appropriate 1-22 forum that: 1-23 (A) offers a remedy for the causes of action 1-24 brought by a party to which this section applies; 2-1 (B) as a result of the submission of the parties 2-2 or otherwise, can exercise jurisdiction over all parties and claims 2-3 properly joined in the action by the claimant; and 2-4 (C) would provide a place of trial that is fair, 2-5 reasonable, and convenient to the parties; 2-6 (2) maintenance of the action in the courts of this 2-7 state would work a substantial injustice to the moving party and 2-8 the balance of the private interests of all the parties and the 2-9 public interest of the state predominates in favor of the action 2-10 being brought in the other forum; and 2-11 (3) the stay or dismissal would not, in reasonable 2-12 probability, result in unreasonable duplication or proliferation of 2-13 litigation. 2-14 (c) No stay or dismissal shall be granted under Subsection 2-15 (b) until all properly joined defendants file with the clerk of the 2-16 court a written stipulation that each defendant will: 2-17 (1) submit to the personal jurisdiction of the courts 2-18 of the other forum; and 2-19 (2) waive any defense based on the statute of 2-20 limitations applicable in the other forum with respect to all 2-21 causes of action brought by a party to which this section applies. 2-22 (d) The court may, on motion and notice to the parties, 2-23 modify an order granting a stay or dismissal under this section and 2-24 take any further action in the proceeding as the interests of 2-25 justice may require. If the moving party violates a stipulation 2-26 required by Subsection (c), the court shall withdraw the order 2-27 staying or dismissing the action and proceed as if the order had 3-1 never been issued. Notwithstanding any other law, the court shall 3-2 have continuing jurisdiction for the purposes of this subsection. 3-3 (e) A request for stay or dismissal under this section is 3-4 timely if it is filed not later than the time required for filing a 3-5 motion to transfer venue of the action. Otherwise, any objection 3-6 under this section to the court's exercise of jurisdiction is 3-7 waived. The court may rule on a motion filed under this section 3-8 only after a hearing with notice to all parties not less than 21 3-9 days before the date specified for the hearing. The court shall 3-10 afford all of the parties ample opportunity to obtain discovery of 3-11 information relevant to the motion prior to a hearing on a motion 3-12 under this section. The moving party shall have the responsibility 3-13 to request and obtain a hearing on such motion at a reasonable time 3-14 prior to commencement of the trial, and in no case shall the 3-15 hearing be held less than 30 days prior to trial. 3-16 (f) A court may not stay or dismiss an action pursuant to 3-17 Subsection (b): 3-18 (1) if a claimant in the action who is properly joined 3-19 is a legal resident of this state; 3-20 (2) if a party opposing the motion under Subsection 3-21 (b) alleges and makes a prima facie showing that an act or omission 3-22 that was a proximate or producing cause of the injury or death 3-23 occurred in this state. Notwithstanding Subsection (h), said prima 3-24 facie showing need not be made by a preponderance of the evidence 3-25 and shall be deemed to be satisfied if said party produces credible 3-26 evidence in support of the pleading, which evidence need not be in 3-27 admissible form and may include affidavits, deposition testimony, 4-1 discovery responses, or other verified evidence; 4-2 (3) in an action brought under the federal Employers' 4-3 Liability Act (45 U.S.C. Section 51 et seq.), the federal Safety 4-4 Appliance Act (45 U.S.C. Section 1 et seq.), or the federal Boiler 4-5 Inspection Act (45 U.S.C. Section 22 et seq.); 4-6 (4) in an action in which it is alleged that the 4-7 personal injury or death was caused by a means of air 4-8 transportation designed, manufactured, sold, maintained, inspected, 4-9 or repaired in this state or occurred while traveling in or on a 4-10 means of air transportation during a trip originating from or 4-11 destined for a location in this state; or 4-12 (5) in an action in which it is alleged that harm was 4-13 caused by exposure to asbestos fibers. 4-14 (g) This section does not apply if the personal injury or 4-15 death that is the subject of the cause of action resulted from a 4-16 violation of the laws of this state or of the United States, 4-17 including but not limited to exposure to a substance referred to in 4-18 Section 33.013(c)(3) that was transported out of this state or the 4-19 United States in violation of the laws of this state or the United 4-20 States. 4-21 (h) The burden is on the party opposing a motion under 4-22 Subsection (b) to assert and prove by a preponderance of the 4-23 evidence an exception provided by Subsection (f), if applicable. 4-24 If a party opposing a motion under Subsection (b) fails to timely 4-25 raise an exception under Subsection (f), that party's right to 4-26 raise such exception is waived, but such waiver does not relieve 4-27 the moving party as to any requirement of this section. An 5-1 exception filed not less than seven days before the hearing on a 5-2 motion made under Subsection (b) shall be deemed to be timely. 5-3 (i) Any time limit established by this section may be 5-4 extended by the court at the request of any party for good cause 5-5 shown. 5-6 (j) In this section: 5-7 (1) "Legal resident" means a person who intends the 5-8 specified political subdivision to be his permanent residence and 5-9 who intends to return to the specified political subdivision 5-10 despite temporary residence elsewhere or despite temporary 5-11 absences, without regard to the person's country of citizenship or 5-12 national origin. The term does not include a person who adopts a 5-13 residence in the specified political subdivision in bad faith for 5-14 purposes of avoiding the application of this section. 5-15 (2) "Claimant" means a party, including a plaintiff, 5-16 counterclaimant, cross-claimant, or third-party plaintiff, seeking 5-17 recovery for personal injury or wrongful death. In a cause of 5-18 action in which a party seeks recovery of damages for personal 5-19 injury to or the wrongful death of another person, "claimant" 5-20 includes both that other person and the party seeking such 5-21 recovery. The term does not include a person who is assigned a 5-22 cause of action for personal injury, or who accepts an appointment 5-23 as a personal representative in a wrongful death action, in bad 5-24 faith for purposes of affecting in any way the application of this 5-25 section. 5-26 (k) This section applies to actions for personal injury or 5-27 wrongful death. This section shall govern the courts of this state 6-1 in determining issues under the doctrine of forum non conveniens in 6-2 the actions to which it applies, notwithstanding Section 71.031(a) 6-3 or any other law. 6-4 SECTION 2. This Act applies to a cause of action filed on or 6-5 after September 1, 1993. 6-6 SECTION 3. The importance of this legislation and the 6-7 crowded condition of the calendars in both houses create an 6-8 emergency and an imperative public necessity that the 6-9 constitutional rule requiring bills to be read on three several 6-10 days in each house be suspended, and this rule is hereby suspended.